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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12059
Non-Argument Calendar
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D.C. Docket No. 4:10-cr-00070-RH-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANE JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 1, 2020)
Before WILLIAM PRYOR, Chief Judge, MARTIN and JILL PRYOR, Circuit
Judges.
PER CURIAM:
Shane Jones appeals the denial of his motion for a sentence reduction under
Section 404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
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(“First Step Act”). On appeal, he argues the district court erred when it held that it
was not authorized to reduce his sentence. After careful review, we affirm.
I.
In 2010, Jones was charged with conspiring to distribute and possess with
the intent to distribute 500 grams of cocaine or more, in violation of 21 U.S.C.
§ 846 (“Count One”). He was also charged with possessing with the intent to
distribute five grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(b)(1)(B)(iii) (“Count Two”). Jones pled guilty to Count Two pursuant to a
plea agreement in which the government agreed to dismiss Count One. In the
statement of facts filed with the plea agreement, the government alleged that police
searched Jones’s car and found 33.6 grams of cocaine base.
At the plea hearing, Jones agreed that he possessed with intent to distribute
more than five grams of cocaine base. But he contested the government’s
allegation that he possessed 33.6 grams of cocaine base and claimed he in fact
possessed 28 grams of powder cocaine and 5.6 grams of cocaine base. The district
court explained that, at the time Jones committed the offense, possessing five
grams or more of cocaine base with a prior drug felony conviction was sufficient to
trigger a ten-year mandatory sentence. The court pointed out that the amount of
cocaine base required to trigger the mandatory minimum had been amended by the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“Fair
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Sentencing Act”), but explained that this change was not retroactive. However, the
court noted that finding Jones possessed more than 28 grams of cocaine base
would also trigger the ten-year mandatory minimum under the Fair Sentencing
Act’s amended cocaine base threshold, thereby “eliminat[ing] the retroactivity
question.” Jones reserved the right to challenge at sentencing whether he
possessed more than 28 grams of cocaine base.
The presentence investigation report (“PSR”) recommended holding Jones
responsible for 33.6 grams of cocaine base and assigned him an offense level of 34
and a criminal history category of VI. The PSR calculated a guideline range of
262- to 327-months imprisonment. As relevant here, Jones objected to the drug
amount and argued he should be held responsible for 5 grams of cocaine base and
28 grams of powder cocaine.
At the sentencing hearing, Jones conceded “for purposes of sentencing” that
he was in possession of 33.6 grams of cocaine base. Through counsel, he stated
that he made this concession “because it sets a table-bottom of ten-year minimum
mandatory” which is the sentence he was “looking at for a starting point.” At the
hearing, the district court sentenced Jones to 120-months imprisonment, which was
the mandatory minimum, followed by 8-years supervised release. The judgment
reflected that Johnson’s conviction was for possession with intent to distribute 28
grams or more of cocaine base.
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Jones appealed. He argued that his sentence should be vacated under the
Fair Sentencing Act, under which a defendant with a prior conviction under 21
U.S.C. § 841(b)(1)(B)(iii) must possess with intent to distribute 28 grams of
cocaine base or more to trigger a ten-year mandatory minimum sentence. United
States v. Shane Jones, 491 F. App’x 160, 161 (11th Cir. 2012) (per curiam)
(unpublished). Jones asserted that he did not admit, and the district court did not
find, that he possessed with intent to distribute 28 grams or more of cocaine base.
Id. The panel rejected this argument, reasoning that at the sentencing hearing
Jones “told the district court that he accepted the figure of 33.6 grams of crack
cocaine” and “indicated that, as a result, the mandatory minimum sentence he
faced was ten years imprisonment.” Id. at 161–62. The panel affirmed the district
court’s sentence. Id. at 163.
In 2016, Jones moved to correct a clerical error in the PSR and judgment,
arguing that the discrepancy between the amount of cocaine base alleged in the
indictment (5 grams or more) and the amount stated in the PSR and judgment (28
grams or more) was a clerical error that required correction pursuant to Federal
Rule of Criminal Procedure 36. The district court denied the motion and Jones
appealed. A panel of this Court affirmed, holding that “[t]he record makes clear
that the district court and the parties intended for Jones to be sentenced on the basis
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of 33.6 grams of cocaine base.” United States v. Shane Jones, 704 F. App’x 843,
845 (11th Cir. 2017) (per curiam) (unpublished).
In February 2019, Jones filed a motion seeking modification of his sentence
pursuant to 18 U.S.C.§ 3582(c)(2) and the First Step Act. The district court denied
the motion. It reasoned that Jones was originally sentenced based on the Fair
Sentencing Act’s revised cocaine base amounts. And, because Jones admitted he
was responsible for 33.6 grams of cocaine base, which “is between 28 and 280
[grams], just as it is between 5 and 50” grams, he would still face a ten-year
mandatory minimum sentence even if he hadn’t originally been resentenced under
the Fair Sentencing Act. Jones appealed.
II.
We review de novo the district court’s authority to modify a term of
imprisonment. United States v. Steven Jones, 962 F.3d 1290, 1296 (11th Cir.
2020). We review for abuse of discretion the denial of an eligible movant’s
request for a reduced sentence under the First Step Act. Id.
III.
Jones argues that under the First Step Act he is eligible to be resentenced
under the Fair Sentencing Act’s revised cocaine base amounts. Because the district
court correctly held that he was already sentenced in accordance with the Fair
Sentencing Act’s revised cocaine base amounts, we affirm.
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The Fair Sentencing Act amended 21 U.S.C. § 841(b)(1) to reduce the
sentencing disparity between crack and powder cocaine. See Dorsey v. United
States, 567 U.S. 260, 268–69, 132 S. Ct. 2321, 2328–29 (2012) (describing the
legislative history of the Fair Sentencing Act). Section 2 of the Fair Sentencing
Act increased the threshold amount of cocaine base necessary to trigger a
mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B)(iii) from 5 grams to
28 grams. Fair Sentencing Act § 2(a)(2). In 2018, Congress enacted the First Step
Act, which made retroactive the Fair Sentencing Act’s modifications of statutory
penalties. See First Step Act § 404. Under § 404(b) of the First Step Act, “[a]
court that imposed a sentence for a covered offense may . . . impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the
time the covered offense was committed.” Id. § 404(b). Covered offenses are
those that “triggered a statutory penalty that has since been modified by the Fair
Sentencing Act.” Steven Jones, 962 F.3d at 1298.
The First Step Act does not authorize courts to entertain motions for
reduction of sentence “if the sentence was previously imposed . . . in accordance
with the amendments made by sections 2 and 3 of the Fair Sentencing Act of
2010.” First Step Act § 404(c). In Jones, this Court interpreted this provision to
mean that “the First Step Act does not permit a reduction when the Fair Sentencing
Act could not have benefitted the movant.” 962 F.3d at 1303. “If the movant’s
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sentence would have necessarily remained the same had the Fair Sentencing Act
been in effect, then the district court lacks the authority to reduce the movant’s
sentence.” Id.
Here, the district court did not err in holding that Jones was not eligible for
relief because he “was originally sentenced based on the Fair Sentencing Act.”
Jones conceded at his sentencing hearing that he was in possession of 33.6 grams
of cocaine base, not 5.6 grams as he initially maintained at his plea colloquy. In
sentencing Jones to the mandatory minimum ten-years imprisonment, the district
court weighed the fact that 33.6 grams was “just a little bit more than the amount
that’s the minimum to get [the] minimum mandatory [sentence]” under the Fair
Sentencing Act. This amount would still trigger the ten-year mandatory minimum
if Jones were resentenced under the current version of 21 U.S.C. § 841, as
amended by the Fair Sentencing Act. See 21 U.S.C. § 841(b)(1)(B)(iii). Thus,
Jones has already received the minimum statutory sentence under the Fair
Sentencing Act and the district court lacked the authority to reduce his sentence.
See Steven Jones, 962 F.3d at 1303.
Jones argues that his concession at sentencing does not preclude relief under
the First Step Act under the doctrine of collateral estoppel. He claims that the
“only fact essential to the earlier conviction and sentence” was that he had five
grams or more of cocaine base, so any concession to a greater amount was
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“irrelevant.” This argument is without merit. In Steven Jones, this Court held that
in deciding motions for reduced sentences under the First Step Act, district courts
are not prohibited “from relying on earlier judge-found facts that triggered
statutory penalties that the Fair Sentencing Act later modified.” 962 F.3d at 1303.
Here, the district court relied on the PSR and Jones’s concession in finding that he
possessed more than the 28-gram minimum under the Fair Sentencing Act. The
district court did not err by relying on this finding in denying Jones’s motion for
resentencing under the First Step Act.
Further, a panel of this Court previously held that “[t]he record makes clear
that the district court and the parties intended for Jones to be sentenced on the basis
of 33.6 grams of cocaine base.” Shane Jones, 704 F. App’x at 845. This holding
resolves any dispute over whether Jones’s statutory minimum sentence was
triggered by the 33.6-gram amount and is binding as the law of the case. See
United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 2014) (holding that under
the law-of-the-case doctrine, an appellate decision binds all subsequent
proceedings in the same case and encompasses both findings of fact and
conclusions of law).
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IV.
Because the district court could not further reduce Jones’s sentence under
the Fair Sentencing Act, it lacked the authority to grant relief under the First Step
Act. We affirm the denial of Jones’s request for resentencing.
AFFIRMED.
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